Ninth Circuit Finds Substantive Due Process Right to “Control Public Dissemination of a Family Member’s Death Images”

The opinion in Marsh v. County of San Diego is by Chief Judge Kozinski and joined by Judges Paez and Wardlaw. It involves a claim by a mother that her Due Process rights were violated when a prosecutor investigating the death of her 2-year old son copied autopsy photographs of her son and then disclosed one of the photos to a newspaper. “Given the viral nature of the Internet,” the court concludes, the effort to publish the autopsy photo was an “intrusion into the grief of a mother over her dead son” that shocks the conscience and therefore violates the mother’s right to substantive due process. I’m skeptical of the court’s reasoning, but then I am often skeptical when judges find new rights that no one noticed before. The court then holds that qualified immunity applies, however, as no court has previously found a federal constitutional right in the control of death images. Thanks to How Appealing for the link.